People v. Seger
| Decision Date | 29 July 1970 |
| Citation | 63 Misc.2d 921,314 N.Y.S.2d 240 |
| Parties | PEOPLE of the State of New York, Plaintiff, v. Richard A. SEGER, Defendant. |
| Court | New York Town Court |
Michael F. Dillon, Dist. Atty. (James J. Michalek, Lackawanna, of counsel), for plaintiff.
Leland S. Davis, for defendant.
DECISION AND ORDER
Defendant was arrested on March 4, 1970, charged with driving while intoxicated at 1:45 a.m. the same date, on Millersport Highway in the Town of Amherst, New York, in violation of Sec. 1192 Par. 2 of the Vehicle and Traffic Law, and tried before this Court without a jury on April 13, 1970.
The defendant was apprehended after a high-speed chase consuming two minutes in time. When stopped he was arrested for speeding as well as driving while intoxicated. The speeding charge was dismissed With respect to the charge of driving while intoxicated, the arresting officers, State policemen, testified as to their observations of the defendant and their conversations with him.
at the close of the People's case because of a variance between pleading and proof.
They described him as follows: strong odor of alcohol on breath, hair disheveled, speech a little bit slurred, eyes bloodshot, slow moving, swayed when he walked.
The defendant advised them that he had had two beers, was not ill, had not been to a doctor nor suffered from sugar diabetes.
Both police officers recited their experiences with drivers charged with driving while intoxicated and with drivers whose ability to operate a motor vehicle is impaired by the consumption of alcohol.
After arresting the defendant, the police officers advised the defendant of his rights relative to the taking of a chemical test to measure alcohol content by weight in his blood. Defendant consented to the taking of a breath test by means of a device known as the Breathalyzer.
Police officer Thomas J. Kenny hereinafter referred to as Kenny, called the State Police barracks at Clarence, New York requesting that the Breathalyzer machine be 'turned on'. When the two police officers and the defendant arrived at the State Police barracks, Kenny was the technician who administered the test to the defendant. His training consisted of going to the Breathalyzer School of the State Police. He had used the machine thirty times prior to his administering the test to the defendant.
Kenny's testimony relative to the test was received without any ojection.
Kenny 'calibrated' the machine by placing the pointer at zero on the scale. He inserted a sanitary mouthpiece into the input hose. The machine was then ready for the test. 'It took five minutes to ready the machine.' A check list of procedures was followed.
The check list was received in evidence as plaintiff's Exhibit 1 and a photostatic copy f same is attached to this Decision.
'The results were .12. It indicates lack of intoxication. . 12 indicates impairment.'
The officer testified in addition:
Kenny further testified that no substance other than alcohol affects the machine.
State Police Sergeant Kevin J. Enser, the police officer, saw Officer Kenny use the machine and follow the check list. He also observed the reading of the machine as being .12.
The defendant testified that he had drunk two beers over a period of one hour at the Pine Lodge tavern and that he had been tired, but not intoxicated. The defendant testified that he had been in a motorcycle accident two years prior thereto in which accident he suffered a 'smashed leg' which left a limp. He admitted that he had swayed the night of the arrest as he always does since the motorcycle accident. He further testified that one of his eyes is always red and gets more so when tired. Furthermore, he drove his automobile home from the State Police barracks subsequent to the test, after, the passenger who had been in his automobile at the time of the arrest, drove it to the State Police barracks in Clarence.
The defendant called as a witness his passenger, a seventeen year-old boy who corroborated defendant's testimony with respect to the drinking of two beers, the permanent red eye, and the limp.
The State Police oficers believed that the defendant had been driving while intoxicated which belief or opinion was based upon their observations and the results of the Breathalyzer. Nevertheless, they both admitted that the twelve hundredths of one percentum reading of the Breathalyzer indicated that the defendant was 'impaired'.
The defendant was over the age of twenty-one years; to wit, twenty-eight years old.
Sec. 1192 Par. 1, Sentence 2 reads as follows: 'No conviction shall be had under this subdivision after entry of a plea of not guilty unless it is shown by means of a chemical test administered under section eleven hundred ninety-four that there was within two hours of the defendant's arrest, ten hundredths of one percentum or more by weight of alcohol in his blood; * * *'. Sentence one of the same paragraph provides that whoever operates a motor vehicle while his ability to operate such motor vehicle is impaired by the consumption of alcohol shall be guilty of a traffic infraction.
Paragraph 2 of the same section provides that whoever operates a motor vehicle while in an intoxicated condition shall be guilty of a misdemeanor. Paragraph 3 of Sec. 1192 provides that in any action or proceeding involving a charge either under paragraph 1 or paragraph 2, the Court may admit evidence of the amount of alcohol in the defendant's 'For the purposes of this section (a) evidence that there was, at the time, five-hundredths of one percentum, or less, by weight of alcohol in his blood is prima facie evidence that the defendant was not in an intoxicated conditions; (b) evidence that there was, at the time, more than five-hundredths of one-percentum and less than fifteen-hundredths of one percentum by weight of alcohol in his blood is relevant evidence, but it is not to be given prima-facie effect, in indicating whether or not the defendant was in an intoxicated condition; (c) evidence that there was, at the time, ten-hundredths of one percentum, or more, by weight of alcohol in his blood, may be admitted as prima-facie evidence that the defendant's ability to operate a motor vehicle or motorcycle was impaired by the consumption of alcohol; (d) evidence that there was, at the time fifteen-hundredths of one percentum or more by weight of alohol in his blood, may be admitted as prima facie evidence that the defendant was in an intoxicated condition.'
blood taken within two hours of the time of arrest, as shown by medical or chemical analysis of breath, blood, urine or saliva and that,
Based on the results of the chemical test, the People failed to present prima-facie evidence of the fact that the defendant was intoxicated.
The result of the Breathalyzer test, if accepted by the Court would constitute evidence of a violation of Paragraph 1 of Sec. 1192 of the Vehicle and Traffic Law.
Furthermore, the results of the Breathalyzer test being .12 would, if accepted by the Court, be relevant evidence in determining whether the defendant was intoxicated. In other words, the results of the Breathalyzer test and the observational evidence evidence would make a total picture in helping to determine guilt or innocence of driving while intoxicated.
Taking into consideration the permanent physical defects of the defendant, the observational evidence of the police officers had not convinced this Court beyond a reasonable doubt that the defendant is guilty of a violation of Sec. 1192 Par. 2 of the Vehicle and Traffic Law. The results of the Breathalyzer test, if accepted in toto, would establish at most that the defendant was guilty of a violation of Sec. 1192 Par. 1.
However, the question remains whether this Court is to accept the results of the Breathalyzer despite the fact that the evidence thereof was admitted without objection.
The Court is well aware of the carnage committed upon our highways by the drunken driver, of the untold millions in property damage each year, the maiming and the killing as well as the untold heartache.
The Court is further well aware of the desirability of a testing device other than the established and well-accepted blood sample test to measure alcoholic content in the blood of one accused of the violation of Sec. 1192. Even in this enlightened day and age, there is still revulsion With respect to the Breathalyzer this is a case of first impression insofar as I can determine from the reported cases.
and apprehension upon the part of a great many people in having blood samples taken.
The Court's reading of literature concerning the Breathalyzer independent of the testimony given in this case has caused us to learn that the Breathalyzer is an electro-chemical device purporting to record the weight of alcohol in the defendant's blood.
Therefore, this case concerns the weight of the evidence (not the admissibility in evidence--because it was received without objection) of the reading of the said Breathalyzer.
The ultimate fact to be proved is the percentage by weight of alcohol in the defendant's blood.
If the defendant is to be found guilty, the burden rests upon the people to establish the accuracy of the device.
This Court believes that we are at the same stages of the law with respect to the Breathalyzer as we were with respect to radar as a speed...
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People v. Graser
...from driving while intoxicated, was only a traffic infraction. As stated in the statute and by this Court in People v. Seger, 63 Misc. 921, 314 N.Y.S.2d 240, there could be no conviction under sec. 1192 sub. 1, unless the defendant first submitted to a chemical test, and the results of such......